## Facts

- Mary Jane Ruderman Hirschey sought to develop a small hydroelectric project and applied for an exemption from Federal Power Act (FPA) licensing requirements in December 1981; the exemption became effective June 7, 1982.
- On July 20, 1982, the Federal Energy Regulatory Commission (FERC) issued an order vacating the exemption on its own initiative.
- Hirschey’s first petition for judicial review was dismissed for failure to exhaust administrative remedies.
- After attempting rehearing before FERC, Hirschey filed a second petition for review; the court upheld her entitlement to the exemption.
- As the prevailing party, Hirschey timely sought attorneys’ fees and costs under the Equal Access to Justice Act (EAJA).
- In an earlier fee ruling, the court held EAJA fees were available for judicial-level proceedings arising under the FPA, but FPA § 317 barred an award of costs; agency-level fee issues were remanded to FERC.
- This decision resolved only the amount of EAJA attorneys’ fees for proceedings in the court of appeals and addressed objections that certain time entries related to agency proceedings or an unsuccessful effort to oppose intervention by Long Lake Energy Corporation.

## Issues

1. Which claimed attorney hours were compensable under EAJA for judicial-level proceedings, and which had to be excluded as agency-related or unrelated to the successful merits result.
2. What fee amount was reasonable under EAJA based on documentation, reasonable hours, and permissible hourly rates.
3. Whether the FPA’s bar on “costs” affected the availability of EAJA attorneys’ fees in this judicial proceeding.

## Decision

- The D.C. Circuit granted Hirschey an award of attorneys’ fees under EAJA for qualifying work performed in the court of appeals.
- The court excluded hours identified as related to proceedings before FERC because the judicial award was limited to “proceedings at the judicial level.”
- The court excluded hours spent on Hirschey’s unsuccessful effort to oppose Long Lake Energy Corporation’s intervention.
- The court calculated the fee based on documented hours and reasonable rates, reducing the request to remove non-compensable entries.
- The court treated the availability of EAJA fees in FPA litigation as settled and reaffirmed that the FPA’s bar on costs did not preclude an EAJA fee award.

## Legal Principles

- EAJA permits a prevailing party to recover reasonable attorneys’ fees in qualifying litigation against the United States, subject to statutory limits and reasonableness review.
- In determining an EAJA fee, a court awards only hours reasonably expended on compensable work and excludes time for non-compensable tasks.
- When a court limits an EAJA award to judicial proceedings, time devoted to agency-level proceedings is not compensable in the judicial fee calculation.
- Time spent on unsuccessful, collateral efforts that are separable from the successful claim may be excluded from a reasonable fee award.
- A statutory bar on awarding “costs” under the FPA does not, by itself, preclude an award of attorneys’ fees under EAJA; Congress’s subsequent EAJA amendments supported that interpretation.

## Conclusion

The court awarded Hirschey EAJA attorneys’ fees for her documented and reasonable appellate work as the prevailing party, while reducing the request to exclude agency-related time and time spent on an unsuccessful collateral intervention dispute, and it reaffirmed that the FPA’s cost limitation did not foreclose EAJA fee recovery.


Hirschey v. Fed. Energy Regul. Comm'n, 777 F.2d 1 (D.C. Cir. 1985)